EXHIBIT B
DAL-TILE INTERNATIONAL INC.
MANAGEMENT SUBSCRIPTION AGREEMENT
AGREEMENT made as of July 17, 1998 by and among Dal-Tile
International Inc., a Delaware corporation (the "Corporation") and Xxxxxxx
Xxxxxx (the "Subscriber").
WHEREAS, the Subscriber wishes to purchase an aggregate of 100,000
shares of common stock, par value $.01 per share of the Corporation (the
"Common Stock") for $9.44 per share in cash and thereby make an investment in
the Corporation and the Corporation wishes to issue and sell the same to the
Subscriber, upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, the parties agree as follows:
SECTION 1. AGREEMENT TO SELL AND PURCHASE SECURITIES. The
Corporation agrees to sell to the Subscriber, and the Subscriber subscribes
and agrees to pay for, upon the terms and condition hereinafter set forth,
100,000 shares (the "Shares") of Common Stock, at a purchase price of $9.44
per share.
SECTION 2. CLOSING. The issuance and delivery of the Shares to
the Subscriber and all other transactions contemplated hereby shall take
place at a closing (the "Closing") at the offices of the Corporation at 10:00
a.m. Dallas times, on July 24, 1998 or at such other place or such other time
or date as the Corporation and the Subscriber may agree in writing. At the
Closing the Subscriber shall pay for the Shares in immediately available
funds or by such other form of payment acceptable to the Corporation and the
Corporation will issue or cause to be issued and delivered to him
certificates for the Shares.
SECTION 3. REPRESENTATIONS AND WARRANTIES BY THE CORPORATION.
The Corporation represents and warrants to the Subscriber that:
(a) The Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
has all requisite corporate power and authority for the transactions
contemplated by this Agreement.
(b) The authorized capital stock of the Corporation consists of
200,000,000 shares of Common Stock and 11,100,000 shares of preferred stock,
par value $.01 per share. As of April 3, 1998, there were 53,455,101 shares
of Common Stock outstanding and no shares of preferred stock outstanding.
(c) The Corporation has full power and authority to enter into
this Agreement, and to issue and deliver the Shares and to incur and perform
the obligations provided for herein, all of which have been duly authorized
by all necessary corporate action. The execution and performance of this
agreement does not, and the issuance of the Shares will not, violate any
provision of any applicable law or the Restated Certificate of Incorporation
or the By-Laws of the Corporation, or any agreement or instrument by which it
is bound and will not result in the creation of any encumbrance or charge
upon any of its assets. This Agreement constitutes the
valid and legally binding obligation of the Corporation, enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally or by general equitable principles.
(d) The Shares when issued and delivered pursuant to this
Agreement will be validly issued, fully paid and non-assessable.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER.
The Subscriber for himself represents, warrants and agrees that:
(a) The Subscriber is acquiring the Shares to be acquired by him
hereunder for his own account, for investment and not with a view to the sale
or distribution thereof nor with any present intention of distributing or
selling the same.
(b) The Subscriber will not sell, assign, transfer, pledge or
otherwise dispose of any of the Shares acquired by him hereunder unless and
until the same are registered under the Securities Act of 1933, as amended
(the "Securities Act"), and any applicable state securities law, or an
exemption from such registration is available, and until the Corporation
shall have received a written opinion of counsel to the Subscriber,
reasonably acceptable to the Corporation, that the disposition is in
compliance with the requirements of the Securities Act and any applicable
state securities law.
(c) The Subscriber acknowledges and agrees that the Shares will
contain an appropriate legend restricting the transfer thereof.
(d) The Subscriber has the full legal right and power and all
authority and approval required to enter into, execute and deliver this
Agreement and to perform fully his obligations hereunder. This Agreement has
been duly executed and delivered and is the valid and binding obligation of
the Subscriber enforceable in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
laws affecting the enforcement of creditors' rights generally or by general
equitable principles. The execution and delivery of this Agreement by the
Subscriber and the performance by the Subscriber of this Agreement in
accordance with its terms and conditions will not (i) require the approval or
consent of any other person, including without limitation the approval or
consent of any governmental or regulatory body; or (ii) conflict with or
result in any breach or violation of any of the terms and conditions of, or
constitute (or with notice or lapse of time or both constitute) a default
under, any statute, regulation, order, judgment or decree applicable to the
Subscriber, or any instrument, contract or other agreement to which the
Subscriber is a party or by or to which the Subscriber is bound or subject.
(e) The Subscriber is an Executive Officer of the Corporation and
is familiar with its business and prospects.
SECTION 5. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be signed by the Corporation and
the Subscriber and all of
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which shall be deemed to be one and the same agreement binding upon the
Corporation and the Subscriber.
SECTION 6. NOTICES. All notices hereunder shall be in writing
and shall be deemed to have been duly given if delivered in person or by
registered or certified mail, return receipt requested, to the Corporation at
its principal place of business, or to the Subscriber at the address set
forth below or such other address as the Subscriber shall have given to the
Corporation for such purpose. Notice shall be deemed to have been
effectively given when mailed by certified mail, return receipt requested, to
the proper address or delivered in person.
SECTION 7. CHANGES. The terms and provisions of this Agreement
may not be modified or amended, or any of the terms or provisions hereof
waived, except pursuant to the written consent of the Corporation and the
Subscriber.
SECTION 8. HEADINGS. The headings of the various sections of
this Agreement have been inserted for convenience of reference only and shall
not be deemed to be part of this Agreement.
SECTION 9. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the law of the State of Delaware applicable
to agreements made and to be performed entirely within such State.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
DAL-TILE INTERNATIONAL INC.
By:
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SUBSCRIBER
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Address:
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
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